People v Owens

People v Owens 2010 NY Slip Op 06940 [77 AD3d 1389] October 1, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent, v Larry Owens, Appellant.

—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), for defendant-appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.

Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered February 23, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree (Penal Law § 215.51 [b] [ii]). Defendant contends that County Court erred in sentencing him as a second felony offender because he had not previously been convicted of a felony pursuant to Penal Law § 70.06 (1) (a). We agree. We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. Present—Scudder, P.J., Centra, Peradotto, Sconiers and Pine, JJ.